Protecting Private Property Locally

By Dan Byfield

Published May 2010

In 2007, five courageous mayors in eastern Bell County, Texas formed the very first sub-regional planning commission utilizing Section 391 of the Texas Local Government Code as their basis to fight and stop the Tran-Texas Corridor through their five school districts.

It worked and now, the entire TTC project is flickering out like a shooting star.

That’s the real story behind the demise of the TTC. Through a strategy only promoted by American Stewards of Liberty, a non-profit private property rights organization located in Taylor, Texas, those five mayors initiated a process that today is revitalizing and protecting the rights of citizens in our State through an effective local control process called Coordination.

Coordination is a simple word with an extraordinarily powerful legal meaning found in both federal and state statutes that requires government agencies to “coordinate” with local government in developing and implementing plans, policies and management actions.

American Stewards showed the five mayors where the important language was found in the Texas Local Government Code and they immediately formed a planning commission to take advantage of the coordination strategy. The first meeting they called was with the Texas Department of Transportation (TxDoT) to begin “coordinating” their state plans to build the Trans-Texas Corridor through their jurisdiction.

TxDoT was not prepared for what happened next. The five mayors, through the Eastern Central Texas Sub-Regional Planning Commission, adopted a policy that stated “No Trans-Texas Corridor shall be allowed through our jurisdiction.” From that point, they demanded TxDoT begin coordinating their plans with their policy. It was that simple.

Through the three coordination meetings that followed with TxDoT, the mayors discovered that TxDoT had not followed the federal environmental statutes properly. So, they began demanding the federal agencies in charge of enforcing the federal laws force TxDoT to follow the law. Naturally, TxDoT resisted, but the more they resisted, the more the five mayors pushed back.

It was an amazing site to see. Five unpaid mayors representing a total of about 6,000 people stood up to the most arrogant and well-financed state agency in the nation and won. How could they do this incredible feat? Coordination!

Normally, citizens or even local government like counties and cities, are limited to their ability to influence any decision of federal or state agencies. Many times the only participation individuals have is the ability to offer written or brief oral comments at a public meeting called by the agency and run by the agency. Local governments are relegated to negotiations, contracts, cooperative agency status or similar controlling schemes.

It is the way our federal and state agencies control our lives and our purse strings, until now.

Legally, the only responsibility agencies have to the public is to summarize their comments in their final plans that, in reality, normally have a pre-determined outcome. They are under no obligation to negotiate any alterations of their plans, policies or actions based on public input.

However, when local government represents its constituent’s positions through coordination, like the five mayors did, agencies have much broader duties and responsibilities owed to the local government.

The agencies are required to listen and receive local input, analyze the local position to determine if there is conflict between the proposed agency action and the local policy or plan, and they must use good faith effort to resolve any existing conflict to achieve consistency between the proposed state plan, policy or action with the local plan or policy.

That is the power of coordination. It places your local leaders in a government-to-government basis placing them on an equal footing with the larger government agencies that must work with your local leaders before they can proceed with their plans.

This is what those five mayors did. By forming a planning commission, they adopted a local policy of “no TTC through our jurisdiction.” Then, they used 391.009(c) that contained the “coordination” word to force TxDoT to their table to work out any inconsistencies between their local policy and the plan to build the TTC through their jurisdiction. In essence, they placed a 30 mile gap in the TTC right in the center of the State. Who is going to build a 1,200 foot wide toll road from Mexico to Canada with a 30 mile gap in it, hence the beauty of what those mayors did.

The common definition, which is used in lawsuits to define coordination, is not a term of art or one of scientific and special meaning. It’s a word of common usage that literally means “of equal importance, rank or degree, not subordinate.” (Webster’s New International Dictionary)

In Texas, the Texas Court of Civil Appeals referred to the dictionary definition and defined “coordination” in Empire Ins. Co. of Texas v. Cooper (138 S.W.2nd 159 (1940)) as “equal, not subordinate.”

In 2001, then state Representative Rob Junell, now a U.S. District Judge from San Angelo, Texas, amended Section 391.009(c) of the Local Government Code to include this powerful coordination language. His amendment to the code reads:

“In carrying out their planning and program development responsibilities, state agencies shall, to the greatest extent feasible, coordinate planning with commissions to ensure effective and orderly implementation of state programs at the regional level.”

This is what the five mayors relied on in getting not only TxDoT, but Texas Parks and Wildlife and the Texas Commission on Environmental Quality to their table. Then, when they found that TxDoT had violated federal environmental laws that also contain coordination language, they brought in the Environmental Protection Agency, Region 6 and the Natural Resource Conservation Service to begin the coordination process. And, this is where they nailed TxDoT.

They discovered that TxDoT had improperly performed the environmental impact statement according to the federal National Environmental Policy Act (NEPA) and through coordination was able to notice all the proper federal and state agencies in a way no other entity could.

In essence, the mayors informed TxDoT and the federal agencies overseeing the federal environmental study they were all in violation of federal law and if they didn’t do it right, they were going to take them to court. They utilized the laws to bring every agency that was studying and planning for the construction of the international Trans-Texas Corridor to Holland, Texas, population 1,200, to coordinate their plans with their local policy.

Since the first sub-regional planning commission was formed in Bell County, many more have formed. For example, the City of Mason and Mason County have formed the Mason Sub-Regional Planning Commission (MSRPC) to fight the CREZ (competitive renewable energy zone) electric transmission line being proposed by the Lower Colorado River Authority through Mason County.

MSRPC is relying on coordination found in both the Local Government Code and the federal NEPA statute to bring LCRA and U.S. Fish and Wildlife Service (FWS) to Mason, Texas to begin coordinating the plan to build the transmission line through their jurisdiction.

LCRA tried to claim there is no “federal action” so NEPA didn’t apply to them, but through coordination, the MSRPC brought FWL to Mason and got them to admit in a government-to-government meeting that not only is there is a federal action, but because of endangered species two federal laws apply – the Endangered Species Act and NEPA.

Fortunately for the landowners in Mason County, their private property rights are being defended and protected by local government through the sub-regional planning commission and the City of Mason and Mason County by utilizing coordination.

They, like those five tough mayors, are standing up to LCRA by utilizing federal and state laws to their advantage. Coordination is being utilized in hundreds of locations nationwide, but Texas has lead the way through courageous local leaders to protect private property in a new and exciting way never accomplished in our State.

To learn more about the coordination strategy, go to www.Stewards.us or call the author of this article at 512-365-2699.